Vol. 14 No. 1 (January 2004)

LEGAL CULTURE IN THE AGE OF GLOBALIZATION: LATIN AMERICA AND LATIN EUROPE, by Lawrence M. Friedman and Rogelio Perez-Perdomo (eds.). Stanford University Press, 2003. 552pp. Hardcover $70.00. ISBN: 0804746990.

Reviewed by Javier A. Couso, Universidad Diego Portales, Chile. Email: javier.couso@udp.cl .

Over the last decade or so, comparative legal studies have experienced something of a boom, thanks to scores of publications aimed not only at describing the formal structure and substantive content of the law of almost every nation in the world, but also the social and political context in which the former are located. This last element, which represents an extension to the field of comparative law and of the quest to study "law in action"-characteristic of the law and society movement and its descendents in the Anglo-American world-is significant, because it has energized this area of legal studies.

One of the most recent contributions to this literature is LEGAL CULTURE IN THE AGE OF GLOBALIZATION: LATIN AMERICA AND LATIN EUROPE, edited by Lawrence Friedman and Rogelio Pérez-Perdomo. This book, which reunites comparative studies dealing with a variety of Latin American countries-plus France, Italy and Spain-began as an homage to the academic trajectory of John Henry Merryman, a distinguished comparative law scholar who, in the 1960s, pioneered research that relates the study of foreign law to its social and political context.

As the editors point out in the introductory chapter, the volume was inspired by the experience of comparative legal work undertaken during the 1970s by many of the authors who contributed to the book. That project, called the "Stanford Studies in Law and Development" (SLADE), attempted to systematically relate social and economic change to changes in law and the legal system of developing countries in Latin America and Mediterranean Europe. In order to do so, a group of scholars under the leadership of Merryman spent four years gathering a massive amount of data on the demographic, economic, social and other institutional and strictly legal conditions, but the project ran out of funds precisely when the research team was starting to analyze the data. Although eventually a thick volume with statistical information was published (Merryman, Clark, and Friedman 1979), the second volume-which was expected to analyze the data-was never written, leading Merryman to label SLADE "a disappointment, and something of an embarrassment," in the final article of the current book in review.

Before proceeding to my analysis and review, it must be noted how peculiar it is to have made what was ultimately a disappointing episode in Merryman's academic life the focus of a book in his honor. This is so particularly in view of the fact that he is otherwise recognized as one of the most accomplished comparative legal scholars of the last decades, thanks to his groundbreaking work in the comparative study of the so-called "civil law countries," expressed in such remarkable works as THE ITALIAN LEGAL SYSTEM: AN INTRODUCTION (1967)-the very first book in English on modern Italian law-and, most importantly, THE CIVIL LAW TRADITION (1969). The latter is still regarded as one of the best works on comparative legal studies, and a crucial source for understanding the contrast between the civil and common law traditions after more than thirty years since it first edition in English.

At any rate, moving beyond the original purpose of the book, the volume under review represents a valuable contribution to the existing literature in comparative legal studies. As the editors explain in the introductory chapter, all the pieces were written with the shared assumption that legal culture is a fundamental variable in properly understanding different legal systems. As Friedman and Pérez-Perdomo put it, "Often, two societies will have the same formal rules (or very similar ones), and yet the living law may vary greatly because of differences in legal culture" (p.2). In addition to this basic premise, the contributors were asked to provide an account of the changes in the legal system and culture of the many countries under study over the last thirty years of the twentieth century, with a special emphasis on the impact that the processes of democratization and economic globalization have had on the legal systems of the countries under study.

Although the selection of the case studies included in the book could strike some as idiosyncratic-because it lumps together both highly industrialized OECD countries, such as France and Italy, with low and middle income Latin American nations-the editors argue that studying them together makes sense in view of their common history, the fact that all them have languages derived from Latin, and their predominantly Catholic population. More relevant to the legal focus of the study, they all have legal systems sharing a common root in Roman Law and the codification process of the nineteenth century, with its strong emphasis on judicial respect for the sovereignty of legislation and a highly restricted understanding of the role of judges as mere applicators of positive law.

As it is often the case with edited volumes gathering studies done by scholars working in different countries, the articles in this book are uneven, both in the scope and detail of each authors' treatment of their case studies, as well as in the quality of the work they did. Having said this, however, it must be recognized that in this case the book ultimately works, providing a good picture of what has happened with the legal system and culture of countries that together comprise a population of over 470 million.

Although it is hard to draw general themes characterizing the evolution of the legal systems of the ten countries included in the volume, a few elements stand out. The first is the increased prominence acquired by both law and the judicial system over the last thirty years in all the included countries, what the editors call the "legalization" of these societies. More specifically-as in the case of other studies in the field of comparative law and courts-this volume also detects in Latin America and Latin Europe a process in which judges have become more politically relevant, thanks to their role in what one of the contributors calls "the prosecutorial-judicial intervention in politically sensitive matters" (p.248), such as operation "mani pulite" (clean hands) in Italy, or through the enhanced political power of courts endowed with constitutional review powers, which gives them the final say in the interpretation of the constitution. Nonetheless, it appears that there are sharp differences in the degree to which law and courts actually shape politics in the countries included in this volume, with Italy, Spain and Colombia as the paradigmatic cases of law and courts with an enhanced role in the political system, and Mexico, Chile, Brazil and Venezuela as examples of countries in which the traditional political irrelevance characteristic of the civil law tradition remains.

Concerning this important theme-which has been the focus of attention of other books on comparative law and courts-apparently there was no agreed-upon criteria on the indicators of political relevance of law and the judiciary. This could explain why the author of the chapter on Argentina asserts that during the period 1970-1998 there was "an increasing political role of the judges" (p.56), while Garth and Dezalay describe the role of Argentinean law during the 1990s as irrelevant, due to its "lack of autonomy" (p.493), probably alluding to President Menem's packing of the Argentinean Supreme Court in 1991, which gave him a so-called "automatic majority" in that court during his decade-long administration. Of course, it is possible that while the high court was subservient to the president, the appellate and lower courts were developing an increasingly political role, but this example of an apparent contradiction in the characterization of the Argentinean judiciary reflects the need to specify the variables under analysis with more precision.

The lack of a more integrated conceptual framework is also apparent with regard to the other goals that the editors set for the project-that is, the "effect of democratization and globalization" on the legal system and culture of the countries studied in the book (p.3). Indeed, in the case of the democratization element, although all the pieces written on Latin America touch on the relationship between democratization and the legal system and culture, the fact is that they do it in a cursory manner, with little reference to the already large literature on this fascinating topic (e.g., Ginsburg 2003; Gloppen, Gargarella, and Skaar 2003; Barros 2002). With regard to globalization, there is a similar problem. Except for the chapter by Garth and Dezalay and a paragraph alluding to the possible consequences of globalization for legal systems and legal cultures (p.5), the rest of the book has almost nothing to say about the role played by globalization in the legal systems and cultures of the cases included in the rest of the chapters.

Although the book falls short of its stated goal of systematically analyzing the effects that the processes of democratization and economic globalization have had in the legal systems and legal culture of the countries it studied, it is successful in providing a reasonably good overview of the evolution of the legal system and legal culture of each of the case studies over the last thirty years. In this regard, it is fortunate that Lawrence Friedman's distinction between internal and external legal culture was thoroughly utilized by each of the individual authors, helping them organize their work.

Another valuable element of the book is the emphasis most of the chapters give to the evolution of the legal profession and legal education over the last three decades, from which we learn that in most of the countries analyzed both law school enrollment and number of law graduates have expanded, and that both women and members of the middle and lower middle classes have finally gained access to the legal profession. In the case of legal education, it is worth highlighting that in spite of the enormous transformations experienced by the countries studied, not to mention the rest of the world, over the last decades, the traditional style and methodology that has characterized the universities of civil law countries has remained almost untouched, aside from France-a process brilliantly analyzed by Anne Boigeol in her chapter-and a handful of law schools in Latin America (p.7). The significance of the resilience of a legal education which is generally regarded as weak and formalistic is that-in the case of many Latin American states-it conspires against the actual implementation of the many reforms aimed at strengthening the rule of law, as the chapter on Mexico evidences (p.286).

Another aspect of the transformation of the legal system addressed by some of the chapters is the impact of economic and cultural change on litigiousness, which is studied in the chapter on Argentina and in one of the two dedicated to Italy. These demonstrate that neither democratization nor economic growth have an uniform effect on the use of the courts by the people. Also interesting is the analysis of the evolution of the organization of the judiciary as a response to judicial backlog and the new responsibilities that the courts have been taking on over the last decades, a subject addressed in many of the case studies, but the thorough treatment of which would require an entire book.

Due to space constrains it is impossible to do justice to all the chapters included in this collection and comment on each of the themes analyzed by the eighteen contributors to this collaborative work. Therefore, it is important to highlight that, in spite of its shortcomings, this volume represents a serious and well documented effort to trace the transformations experienced and challenges faced by the legal systems of the Latin American and Latin European zone. This is no small achievement-especially if one takes into account the difficulty involved in collecting the relevant information in some of the Latin American countries included-and should serve as a departing point for more systematic efforts to answer the many issues and question that this book raises.

REFERENCES:

Barros, Robert. 2002. CONSTITUTIONALISM AND DICTATORSHIP: PINOCHET, THE JUNTA, AND THE 1980 CONSTITUTION. Cambridge, UK: Cambridge University Press.

Cappelletti, , Mauro, John Henry Merryman, and Joseph Perillo. 1967. THE ITALIAN LEGAL SYSTEM: AN INTRODUCTION. Stanford, CA: Stanford University Press.

Ginsburg, Tom. 2003. JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN EAST ASIA. New York: Cambridge University Press.

Gloppen, Siri, Roberto Gargarella and Elin Skaar (eds.). 2003. DEMOCRATIZATION AND THE JUDICIARY. London: Frank Cass Publishers.

Merryman, John Henry. 1969. THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA. Stanford, CA: Stanford University Press.

Merryman, John Henry, David Clark, and Lawrence Friedman. 1979. LAW AND SOCIAL CHANGE IN MEDITERRANEAN EUROPE AND LATIN AMERICA: A HANDBOOK OF LEGAL AND SOCIAL INDICATORS FOR COMPARATIVE STUDY. Stanford, CA.: Stanford Studies in Law and Development.

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Copyright 2004 by the author, Javier A. Couso.